Deschutes County balances religious freedom, deer populations

Legal challenge mounted by county resident could lead to federal lawsuit

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John Shepherd stands against the archway he built for hosting wedding ceremonies at his venue, Shepherdsfield, outside Sisters on Thursday, Oct. 19, 2017. Shepherd is also pastor at his home church and officiant during the wedding ceremonies he hosts. (Joe Kline/Bulletin file photo) - Bulletin

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John Shepherd stands against the archway he built for hosting wedding ceremonies at his venue, Shepherdsfield, outside Sisters on Thursday, Oct. 19, 2017. Shepherd is also pastor at his home church and officiant during the wedding ceremonies he hosts. (Joe Kline/Bulletin file photo)6812212

SISTERS — In 2014, John Shepherd received some surprising news. Shepherdsfield, his nonprofit church that hosts weddings and other events, was in violation of a Deschutes County provision designed to protect mule deer and other wildlife.

Three years later, however, that provision has trapped Deschutes County between a rock and a hard place. County planners are pursuing a code amendment that would remove churches from the list of buildings prohibited in a portion of the county zoned to protect wildlife, which could help protect Deschutes County from costly federal lawsuits based on a perceived violation of religious freedom.

“C’mon, our First Amendment rights are kind of important,” Shepherd said. “That’s what separates us from Third World dictatorships.”

However, environmental groups have indicated they could challenge the amendment if it’s adopted, in order to protect Deschutes County’s increasingly vulnerable mule deer population.

“They’ve been declining for too long, they’re under stress in this range anyway,” said Carol MacBeth, attorney for Central Oregon LandWatch, during a hearing on the proposed amendment.

The situation has been brewing for a while. Shepherd, who has been a nondenominational pastor for around 40 years, began holding church services from his 216-acre property outside of Sisters in 1999, and said the weddings began as an outgrowth of the church’s work. Today, a large arch used during weddings overlooks the valleys and buttes of the High Desert outside Sisters.

“It went so smoothly I thought I could open this up to the public and bless people with an affordable place to get married,” Shepherd said.

Shepherd held weddings and other events at his home on a semi-regular basis until the county notified him of a code violation three years ago, stating that the operation was taking place in the Metolius Winter Range, where churches are prohibited, alongside other uses, including schools and dog kennels.

Since that time, Shepherd has spent around $10,000 on a wedding permit and hearings officer fees in order to make the church compliant with the county’s code.

In 2016, after the county approved a permit, Central Oregon LandWatch appealed the decision, arguing that county code prohibits churches in the wildlife zone. Later that year, the Oregon Land Use Board of Appeals overturned the permit.

However, the county’s planning commission recognized that prohibiting churches while permitting agritourism operations, including wine tastings and farm tours, could leave it vulnerable to a lawsuit based on the Religious Land Use and Institutionalized Persons Act. The federal law, signed by President Bill Clinton in 2000, protects religious houses of worship from discrimination in zoning and other land use ordinances.

Shepherd said allowing buildings like hunting lodges and storage units, which might have a similar impact on deer, while prohibiting churches is a clear violation of the law. He added that he’s working with a Michigan-based lawyer who specializes in religious freedom cases, and is prepared to file a lawsuit if the county doesn’t allow him to continue holding church services on his property.

“Any federal lawsuit is very expensive for the county,” Shepherd said.

Still, MacBeth added that she thought a lawsuit based on the federal law would have around a 5 percent chance of success. Central Oregon LandWatch is pushing for the county to add an explicit statement prohibiting assemblies and membership organizations in the deer winter range.

Allowing churches just to accommodate a potential lawsuit would be counter-productive, and could harm already declining deer populations in the area, MacBeth added.

“It’s not anything about any religion, it’s just about gathering places,” she said.

Corey Heath, biologist for the Deschutes district of the Oregon Department of Fish and Wildlife, said the department estimates that 5,748 mule deer live in the Metolius range, a significant decline from population totals in the 1970s and earlier. While deer populations wax and wane naturally in Central Oregon, Heath said a growing number of residents in the region, among other factors, makes it difficult for the species to get back on track.

“It gets harder and harder (for the species) to recover,” Heath said.

He added that buildings that receive a lot of traffic, including churches, can destroy habitat and displace populations of mule deer and other large animals.

“Our concerns are not with any one type of development,” Heath said. “We’re concerned with the long-term success of the species.”

In the meantime, county officials are looking for a solution that balances religious freedom concerns with concerns about deer habitat, according to Peter Gutowsky, Deschutes County’s planning manager.

Earlier this month, the county’s planning commission recommended that the county retain its prohibition on churches and other religious buildings in the Metolius wildlife zone. The Deschutes County Commission will deliberate on the issue at a date yet to be determined.

“We’re recognizing through the amendment process that a lot of people are affected by this,” Gutowsky said.